What the Jury Hears in Products Liability Litigation. The View From Both Sides and the Middle

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1 What the Jury Hears in Products Liability Litigation The View From Both Sides and the Middle Theresa Zagnoli, Communications Expert and Jury Consultant Susan T. Dwyer, Defense Lawyer Jeffrey A. Lichtman, Plaintiffs Lawyer Judging Products Every day there is a new product liability headline. Every day jurors hear of a sensational new product liability verdict. Every day business is pitted against consumer safety. Trial counsel on both sides of the courtroom have to know what jurors expect from product liability cases, and understand how to adapt their respective cases to those expectations. Jurors want to Know who is Responsible From the moment they step into the courtroom, jurors are taking in clues to figure out what the case is all about. They attend to the voir dire questions to figure out what the lawyers are looking for in a juror. They contemplate the opening statements and wait to see if you will demonstrate what you say you will. They want you to teach them what they need to know to make a decision in the case. All the while, jurors are making judgments and filtering evidence through their basic beliefs about the world, corporations and personal responsibility. The disciplines necessary to understand how jurors filter evidence in product liability litigation include expertise in communications and psychology, and the knowledge gleaned from decades of research on jurors decision-making processes,. A careful and thoughtful preparation of the case with particular attention to how the relevant facts will register with jurors is critical. What 1

2 lawyers working with jury and communication consultants knowis that jurors judge what they hear about first; it is called availability bias. In crafting their individual story about what happened, jurors focus on and judge most harshly the actions of the party initially presented to them. Because jurors assign responsibility to the side they focus on, the plaintiff needs to focus first on what the defendant did wrong; the defendant needs to focus first on what the plaintiff did wrong. Challenges for Both Sides Jurors have basic, preliminary attitudes and perceptions that present specific challenges in product liability litigation, whether you represent the plaintiff or defendant. In the past, jurors believed consumer products were safe unless it was proven otherwise. They trusted governmental standards to protect the public. Recently, however, public faith in governmental agencies to look out for the public s best interest has faded. With frequent publicity about product recalls, corporate misconduct and facts revealed through litigation, jurors are more suspicious than ever. Moreover, the tarnished image of U.S. corportations has complicated the issue for the defense. Notwithstanding that hurdle for corporations, plaintiffs have to confront a new generation of jurors less likely to succumb to sympathy and more likely to assess personal responsibility for accidents. For the plaintiff s case, the primary challenges center around the product itself. First, jurors want to see the actual product. If it is not produced at trial, it hurts the plaintiff s case. If the product is missing, the plaintiff needs a good explanation of why it is not available. Jurors are skeptical of replicas. Second, when the product is a common consumer product, jurors personal experiences are more important than expert testimony or legal standards. When the product is 2

3 one the jurors are likely to be familiar with, and resulted in an injury, plaintiffs will need to show that the product was used in a way or for a purpose that the jurors themselves may have used the product. Jurors believe they have enough expertise to determine if the product is unreasonably dangerous or not and that will often turn on the question they will inevitably ask themselves: Could this happen to me? If the jurors believe that the plaintiff made a mistake or ignored a warning, they will often decide that they would have been smarter, therefore determining that the accident was the plaintiff s fault. Plaintiff s counsel must convince jurors that they are not smarter or more careful than the plaintiff and that they would not have acted differently had they been in the plaintiff s position. If there is any ambiguity as to the safety of a product that is familiar to them, jurors will fill in the blanks for themselves. On the other hand, when a product is unfamiliar, jurors will defer to expert testimony, succinct graphics, and familiar analogies to learn about the product. Either way, the use of human factors principles through either expert testimony or common sense, to explain the reasonable anticipated interface between people and products, is paramount in the plaintiff s case. For the defendants in product liability litigation, the primary challenge is in telling a story that allows jurors to fault the plaintiff, without the defense directly pointing the finger. Jurors think that a defendant, and especially a corporate defendant, who attacks an individual plaintiff is a bully (and no one likes a bully). Overtly blaming the plaintiff and referring to him as absentminded, foolish, or greedy usually backfires. Instead, defendants get much more mileage out of laying out the facts and letting the jurors draw their own conclusions. The key will be to convince the jurors that care and common sense would have avoided the accident and that the plaintiff employed neither, while reasonable people (like themselves) would have naturally used 3

4 both to protect them from injury. After all, even the most benign products can be dangerous if not used properly and in accordance with warnings and instructions. Defense lawyers must rely on jurors employing common sense and present their case in a w ay that emphasizes personal responsibility without communicating indifference to the consequences of the accident. Jurors are not shy about harshly judging a plaintiff; they just do not want the defendant to do so. Plaintiffs must counter by demonstrating that while asserted misconduct may seem careless, the foreseeable uses and misuses of the product are the actual justification for the safety devices or alternative design being advanced. Plaintiff s counsel must be prepared to overcome this defense by establishing that the defendant could have designed the product to avoid the accident, even if the plaintiff was careless. After all, we all make mistakes now and then, and while we are prepared to take responsibility for injuries that result from those mistakes no one could protect us from, plaintiff s can establish that product design can anticipate reasonable misuse. An additional challenge facing both sides in product liability litigation is presenting an appropriate amount of sympathy for the injured plaintiff. Counsel for the plaintiff will hurt hiscredibility if jurors think he is playing the sympathy card too quickly and too often. Counsel for the defense will hurt her credibility if jurors think she is insincere and does not express enough empathy for what the plaintiff has been through. Showing empathy for someone else s pain is different from offering an apology. However, if liability in the case is clear, the defense should apologize. Research shows that in cases where liability is clear, damages are lower when defendants express a sincere apology. The apology must be accompanied by acceptance of some responsibility. When a defendant apologizes and takes responsibility for its actions (even if only partial responsibility), jurors no longer feel that they have to teach a lesson, resulting in reduced damages. Plaintiff s can, of 4

5 course, counter the apology pointing out that it comes years after the injury, unless the defendant offers some evidence that it has made changes to address the problem that led to the plaintiff s injury and that those changes have addressed the problem so others won t suffer the same result plaintiff did. Effective Case Themes Research on thousands of jurors perceptions and active involvement in dozens of product liability cases over the past decade has taught us the most effective themes in product liability litigation. Regardless of which side you represent, you need to be aware of the potential case themes that could be used at trial, including the themes used by your opposition. In general, the most effective plaintiff case themes put the focus on the defendant corporation. Jurors award punitive damages in 16% of all product liability cases, compared to 4% of all civil cases (National Center State Courts, 2001). Some effective plaintiff themes we have identified are (1) the defendant puts profits over safety, (2) the defendant needs to take responsibility for its product, (3) the defendant did not adequately test product safety and (4) that holding manufacturers to the law, and making them accountable, has vastly improved safety in our society. Effective defense themes incite jurors view of litigation. Nearly everyone agrees that there are too many frivolous lawsuits and jurors are skeptical of plaintiffs and their attorneys. Defendants can suggest that the litigation crisis is putting companies out of business and employees out of work. This defendant takes safety seriously and has solved the problem. Plaintiffs should remind jurors that frivolous defenses are equally harmful to our society.just as the plaintiff s 5

6 attorney needs to focus the jury on the injuries suffered by the victim in the courtroom, the defense counsel needs to humanize the corporation by bringing witnesses to the courtroom who put a face on the entity. It is particularly effective to present to the jury the company employees who designed or built the product in question to avoid the jurors seeking to punish or teach a lesson to the company. It is much more difficult, absent an arrogant or ill-prepared presentation, for jurors to get angry at individuals below the management level. Typically these individuals have no motivation to cut corners or compromise safety, and take pride in their work and there is great value in letting the individuals convey that to the jury. 6

7 Even though it is not evidence in a case, jurors are always looking for the underlying motives of both parties. The plaintiff needs to be able to sincerely state the reasons for pursuing this lawsuit. The defendant also needs to establish a motive for ensuring a product s safety. Jurors are much more likely to believe that a corporate defendant takes safety seriously if safety is tied to money. Thus, an effective theme is, It is not good business for the defendant to make an unsafe product that would harm its customers. On the other hand, an effective presentation for the plaintiff will leave the jurors angry, the emotion that packs the biggest wallop to the defendant. Angry jurors are more likely to send a message by a large verdict against the corporation, and in the process a warning to other manufacturers that jurors can act as very effective lobbyists for victims rights - especially when they see themselves as the potential victims. If you are the Plaintiff If you are the Defense Tell the story through he acts and omissions of the defendant. Tell the story through the acts and omissions of the plaintiff. Ask why the product wasn t recalled. Ask why the warnings weren t better. Ask why the plaintiff didn t follow warnings and instructions. Ask why the plaintiff didn t use common sense. Ask why the product wasn t tested more/better Ask why the plaintiff didn t pay attention to or properly maintain the product in a way that reasonable people would. Show that defendant did not keep abreast of industry developments. Show the plaintiff as likeable and normal, i.e., this could have happened to anyone. Ask why this incident hasn t happened more. 7

8 Hope for/or incite defendant to exhibit arrogance/lack of empathy Hope for/incite plaintiff to overplay emotional appeal. Demonstrate through evidence that the defense put profits over safety Hope for/persuade jurors to blame the victim. Timeline showing lack of response or issues that weren t addressed. Timeline showing product testing and safety. Timing: were there safer alternatives? Timing of lawsuit is the plaintiff taking advantage of negative publicity? 8

9 Theresa Zagnoli is one of the founding partners of Zagnoli, McEvoy Foley LLC, a communication consulting firm in Chicago, Illinois. Ms. Zagnoli and her team have consulted with plaintiffs and defense attorneys on thousands of jury cases and projects for over a decade. She is a communications expert and has conducted research involving juror attitudes and behavior throughout the country. Susan T. Dwyer is a partner in the New York office of Herrick, Feinstein LLP and heads the firm s Product Liability Practice Group. Ms. Dwyer has acted as national counsel in the defense of high stakes product liability litigations for major corporations in the U.S. and has consulted as an expert in crisis management and recovery. Jeffrey A. Lichtman is a partner and lead trial attorney in the New York firm of Trolman, Glaser and Lichtman representing plaintiffs in medical malpractice, lead paint poisoning, product liability and general negligence cases. In 2001 Mr. Lichtman was elected and served as president of the New York State Trial Lawyers Association, the state s largest trial lawyer s bar association. 9

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